Bragg’s case vs. Trump likely to land in NY’s highest court

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The criminal case that Manhattan District Attorney Alvin Bragg brought against Donald Trump is “going to be very complicated” and likely land in the state’s highest court, experts say.

Trump was indicted on 34 felony counts of falsifying business records over him allegedly failing to disclose a $130,000 “hush money” payment to former porn star Stormy Daniels as a campaign contribution, since it protected his 2019 presidential run. He pleaded not guilty to the crimes at his arraignment Tuesday.

The charge of falsifying business records is a misdemeanor that Bragg’s office elevated to a felony crime by alleging the former president made the false records with tje intent to commit another crime – which in this case was allegedly violating campaign or election law.

The 45th president allegedly directed the payment to be made to Daniels and another $150,000 payment to former Playboy model Karen McDougal in 2016 in the lead-up to the election to silence both women about their claims they had affairs with him. He then lied in business records to disguise the payment to Daniels as legal costs, prosecutors say.

“A business records charge is a really common white-collar charge,” former Brooklyn prosecutor Adam Uris said. “It’s a method of insuring that businesses don’t cook the books.”


DA Alvin Bragg at a press conference Tuesday.
Manhattan District Attorney Alvin Bragg’s legal theory used to prosecute Trump is rare and will be challenging to prove, experts say.
AP

“Alvin Bragg elevated it to a felony by using a very little used legal theory that says if you’re falsifying the business records to hide a crime, it makes it a felony,” Uris explained.

Uris and legal experts said it is rare to use an alleged federal election-law violation to increase the state law misdemeanor of falsifying business records to a felony.

“The tricky part for Bragg’s prosecution is that the crime he suggested at the press conference – which were campaign finance-related and election law-related – both deal with federal crimes,” Uris said. “What they are going to have to test out in court is whether you can charge someone at a state level for committing a state-level offense behind a federal crime.”


Donald Trump
Trump pleaded not guilty to 34 felony counts of falsifying business records.
Louis Lanzano/UPI/Shutterstock

Uris and other experts said the approach goes into uncharted legal waters, requiring rulings on issues that haven’t been decided on before – making what’s referred to in law as “a case of first impression.”

Former Manhattan prosecutor Michael Bachner said that while the DA’s office has brought similar cases in the past, those defendants pleaded guilty before the legal issues needed to be decided by a judge.

“This is going to be a very complicated area,” Bachner said. “It’s never been litigated.”


A chart from the DA's office on Trump's crimes.
Experts say the legal issues could land the case in New York’s highest court before it goes to trial.
SteveSands/NewYorkNewswire/MEGA

“This may be a case of what the courts call first impression, where the courts may have to decide whether a violation of federal law could be used to increase a state statute,” Bachner explained.

Uris said that because there is no legal precedent for this type of legal theory, Trump’s camp will likely make legal challenges that land the case in New York’s highest court – the Court of Appeals – “prior to it ever being litigated before a jury.”

“If I were his lawyer, I would do whatever I could to prevent this case from going further,” Uris said. “By appealing this legal theory, you’re going to force Bragg to show his cards.”

Manhattan Supreme Court Justice Juan Manuel Merchan on Tuesday may have set the next court date for so far out, in December, to give time for the legal issues to play out, Uris said.


Donald Trump in court.
Trump’s lawyers will likely try to take the case to the state’s highest court, experts say.
AP

“He set a very long adjourn date … It is very unusual,” Uris said. “My guess is it’s because [Merchan] understands the legal issue are going to be challenged.”

The experts also said Trump’s case has some similarities to the 2012 case against former North Carolina Sen. John Edwards, who was accused of carrying out a milliondollar scheme to use illegal funds to cover up his affair and love child with Rielle Hunter while his cancer-stricken wife Elizabeth Edwards was dying.

Edwards – a onetime presidential candidate – was cleared by a jury on one of the corruption charges he faced and the remaining charges, which the jury were hung on, were later dropped by prosecutors.


Alvin Bragg at a press conference Tuesday.
The judge may have set the court date months from now knowing Trump’s camp would challenge the case brought by DA Alvin Bragg, who is presenting details to the press here.
AP

“Both [the Trump and Edwards cases] involve allegations of hush money payments while both individuals were in the midst of a political campaign,” former Brooklyn prosecutor Julie Rendelman told The Post.

But one major difference between Edwards’ and Trump’s cases is that Edwards was charged federally and he was charged with an election-law violation, Rendelman said.

“I think Trump’s charges are a little bit cleaner,” Rendelman said.

Rendelman said a judge could instruct the jury that it can choose to convict on just the misdemeanor if it doesn’t find the felony portion of the charges are proven.

“I think that part of the charge is easier to prove than the election-law violations,” Rendelman said.

Uris noted that the two cases are similar because “they both do feel politically motivated.

“They both deal with the defendants’ character,” he added. “It is highly questionable conduct that is immoral and unethical – but maybe not quite felonious.”

Uris said Bragg’s case “felt rushed” and came after he faced a difficult first year in office and pressure to bring a case with the public’s attention on Trump.

“Trump has been saying that this is a political hit job, and because it is such a stretch legally, it does feel like a political hit job,” he said.

If the case fails, Uris said he wonders what will stop politicians from carrying out this kind of alleged conduct in the future.

Still, “the threat of prosecution sometimes is more effective than the prosecution itself,” Uris said.

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